.........................
In The Matter of                                   Date Issued:   December 8, 1993
                        
TEH K. HU                                          Case No.:  93-ERA-38 
                        
         Complainant    
v.                      
                        
PUBLIC SERVICE ELECTRIC 
 AND GAS COMPANY        
                        
         Respondent     
 .......................

APPEARANCES :  Teh K. Hu
               Pro Se

               Robert R. Rader, Esq.
               For the Respondent

Before:        NICODEMO DE GREGORIO
               Administrative Law Judge



                RECOMMENDED DECISION AND ORDER


     This case arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended, 42 U.S.C.
§5851 (hereinafter "ERA"), and its implementing regulations,
found at 29 C.F.R. Part 24 (1990).  Section 210 of the ERA
prohibits covered employers from discriminating against any
employee with respect to terms, conditions, or privileges of
employment because the employee assisted or participated, or is
about to assist or participate in any manner in any action to
carry out the purposes of the Energy Reorganization Act or the
Atomic Energy Act of 1954, as amended.


PROCEDURAL HISTORY


     Mr. Hu, Complainant, was employed by Public Service Electric
& Gas Company (hereinafter "PSE & G"), Respondent, as a simulator

[PAGE 2]
software engineer until his termination on April 26, 1991.  Mr.
Hu filed a complaint with the Department of Labor Wage and Hour
Division on May 24, 1991 alleging numerous grounds of
discrimination.  The Department of Labor (hereinafter "DOL")
transferred this complaint to the U.S. Equal Employment
Opportunity Commission (hereinafter "EEOC").  The EEOC heard Mr.
Hu's case insofar as it dealt with his allegations of race,
national origin, and age discrimination under Title VII. 
See 42 
        U.S.C. §2000a et seq.  The EEOC's final
determination in May 1993 was that PSE & G did not violate Title
VII by terminating Mr. Hu.  On May 14, 1993 Mr. Hu filed another
complaint with the Department of Labor Wage and Hour Division
because his allegation of discrimination under §210 of the
Energy Reorganization Act had not been heard by either agency. 
This complaint was referred to the Office of Administrative Law
Judges for a hearing.  A formal hearing on the record was held in
Wilmington, Delaware on August 3 through 5, 1993.  Post-hearing
briefs with findings of fact, and conclusions of law were
received from Respondent on September 27, 1993, and from
Complainant on October 7, 1993.  Additional post-hearing
submissions from Mr. Hu dated October 27, November 16, and
November 18, and from PSE & G dated November 9, 1993 were not
considered because they were untimely.  PSE & G's December 1,
1993 objection to Mr. Hu's post-hearing submissions is therefore
moot.  

     Respondent filed a motion on September 27, 1993 to Reopen
the Record to Submit New and Material Evidence Not Previously
Available.  Respondent's Motion contained two exhibits: (1) an
affidavit from Dianna I. Schley, which respondent alleges
demonstrates that the complainant did not discuss §210
claims with the EEOC, and (2) a letter dated May 12, 1993 from
the EEOC Chairman to Mr. Hu, which respondent alleges is not the
EEOC's "final determination," but rather reiterates that the EEOC
was not changing its earlier, final Determination of May 8, 1992.

     Respondent's Motion is denied because these exhibits are
cumulative.  (See Cl. Ex. G).  


                      STATEMENT OF THE CASE


     PSE & G is a licensee of the Nuclear Regulatory Commission
(hereinafter "NRC").  PSE & G operates two nuclear power plants
in Salem, New Jersey.  PSE & G also operates a simulator for each
power plant (hereinafter "Salem Simulator" and "Hope Creek
Simulator").  The simulators, which are also located in Salem, 
[PAGE 3]
New Jersey, replicate the responses received in the control room
of the nuclear facility they simulate.  The simulators reproduce
actual plant conditions in order to train the nuclear power plant
operators.  (Tr. at 237).  Therefore, PSE & G's software
engineers create simulated malfunctions, which require the plant
operators to determine the type and cause of the malfunction, and
to utilize the appropriate operating procedures to respond.  (Tr.
at 237-238).  

     Mr. Hu received a Ph. D. in nuclear engineering from the
University of Oklahoma in 1973.  (Tr. at 40).  On April 10, 1989
Mr. Hu began full-time employment with PSE & G as a simulator
software engineer at the Salem Simulator.  (Tr. at 49).  Mr. Hu's
first experience working as a simulator software engineer was for
PSE & G.  (Tr. at 40-48).  Prior to being employed by PSE & G,
Mr. Hu performed quality control work for Branch Radiographic
Laboratory at the Indian Point 3 nuclear power plant for eighteen
months (Tr. at 41-42); he was employed as a staff engineer
writing system training manuals for General Physics Corporation
for eighteen months (Tr. at 43-44); and he had worked for Systems
Technology Laboratory on a project study of the transportation of
nuclear fuel for three months.  (Tr. at 44).  After that, Mr. Hu
had worked for Bechtel Power Corporation from 1979 through 1988. 
At Bechtel, Mr. Hu worked in the Start-Up Department, then
transferred to Nuclear Engineering, and also worked on dose rate
analysis.  (Tr. at 44-48).  

     At the Salem Simulator, Mr. Nguyen, the lead software
engineer, was assigned to act as a mentor and trainer for Mr. Hu. 
(Tr. at 251).  In addition to Mr. Nguyen and Mr. Hu having some
interpersonal difficulties (Tr. at 254-255), Mr. Nguyen was not
pleased with Mr. Hu's work performance.  (Tr. at 469-475).  Mr.
Hu explained that the reason why he had some difficulty doing the
work assigned to him was because he felt that the summary
language of the computer program was difficult to understand and
figure out (Tr. at 61), and because he believed that errors
existed in the computer program.  (Tr. at 58).  After working at
the Salem Simulator for approximately three months, Mr. Zambuto,
the principal trainer and manager of the training center, asked
Mr. Hu to transfer to the Hope Creek Simulator.  According to Mr.
Zambuto and Mr. Mecchi, the principal trainer for operations, the
Hope Creek Simulator had better documentation and was slower
paced compared to the Salem Simulator.  (Tr. at 328-329,
253-254).  Mr. Hu worked at the Hope Creek Simulator until April
26, 1991 when he was terminated.  

     After Mr. Hu was transferred to the Hope Creek Simulator, he

[PAGE 4]
expressed what he characterized as "quality and safety concerns"
to Mr. Huth, the lead software engineer.  (Tr. at 63-64). 
Sometime thereafter, Mr. Hu expressed his concerns to Mr.
Zambuto.  

     When Mr. Hu was transferred to the Hope Creek Simulator, Mr.
Mecchi arranged for a Senior Software Engineer employed by
Singer-Link to work with Mr. Hu to help familiarize him with the
Hope Creek Simulator's operating system.  (Tr. at 151, 258). 
This one-on-one assistance had never been given to any other PSE 
& G software engineer.  (Tr. at 258).  Mr. Hu was trained by the
Senior Software Engineer for about five to seven business days
(Tr. at 333), at a cost of approximately seventy dollars an hour
to PSE & G.  (Tr. at 258-259).  Mr. Hu also attended the training
courses that were ordinarily assigned to entry level software
engineers.  (Tr. at 334-335).  

     In May 1990 Mr. Hu had his first year appraisal, which
covered the period from July 1989 to April 1990.  (R. Ex. 6). 
For every category that was filled in, Mr. Hu's work performance
was rated "needs development."  (R. Ex. 6).  Beginning in June
1990 until his termination, Mr. Hu was required to fill out
weekly and bi-weekly self assessment sheets.  (R. Ex. 19, Tr. at
367-369).  In October 1990, Mr. Hu had his second year appraisal
which covered the period from May 1990 to September 1990.  (R.
Ex. 9).  Although Mr. Hu received a "meets standard" evaluation
for two categories, the other categories indicated "needs
development" as well as "below standard" ratings.  (R. Ex. 9). 
In a letter dated October 8, 1990, Mr. Hu was notified that he
was being placed in a six-month performance improvement plan
(hereinafter "PIP") effective October 15, 1990.  (R. Ex. 10).  

     Three months later, on January 11, 1991, a panel meeting was
held to discuss Mr. Hu's unsatisfactory performance in the PIP. 
(Cl. Ex. A Enclosure 9).  Mr. Zambuto, Mr. Huth, Mr. Mecchi, Mr.
Saravalo, and Mr. Hu attended this meeting.  (Cl. Ex. A Enclosure
9, Tr. at 318, 423).  At this meeting Mr. Hu raised the same
concerns he had previously raised with Mr. Huth and Mr. Zambuto. 
(Tr. at 424, Cl. Ex. 1).  

     A couple of weeks after the panel meeting, Mr. Zambuto
rejected Mr. Hu's request to go to Ft. Lauderdale, Florida for a
computer training program.  (Cl. Ex. 1).  Shortly thereafter, on
February 21, 1991, Mr. Hu was notified that he would not receive
a salary increase.  (Cl. Ex. B).  On April 22, 1991 Mr. Hu
overheard Mr. Zambuto say "if you don't like him, abuse him, and
ship him out."  (Cl. Ex. A).  Four days later, Mr. Hu was 
[PAGE 5]
terminated from PSE & G.  

     On April 29, 1991, Mr. Hu telephoned the NRC to report the
concerns he raised with his superiors at PSE & G.  (Cl. Ex. 1). 
On April 30, 1991, Mr. Hu requested PSE & G's Human Resources
Department to investigate the reasons for his termination.  The
Human Resources Department concluded that Mr. Hu's allegation of
discrimination was without merit, and that his separation from
PSE & G was based solely on issues surrounding his performance. 
(Cl. Ex. A Enclosure 8).  On May 28, 1991, Mr. Hu requested that
PSE & G take another look at his case.  (Cl. Ex. A Enclosure 9). 
Thereafter, on July 17, 1991 a meeting was held pursuant to the 
Employee Relations Review Procedure where Mr. Hu was given an
opportunity to substantiate his claim that his separation from
PSE & G was improper.  (Cl. Ex. A Enclosure 13, 15).  The Vice
President of Nuclear Operations concluded that:

     A review of your employment record reveals that you failed
     to meet the performance expectations of your position, and
     you were ultimately placed on a formal performance
     improvement plan.  Having reviewed that plan along with your
     performance appraisals, as well as consideration of your
     comments of July 17, I find no evidence to support your
     assertion that your separation was motivated by factors
     unrelated to performance based criteria.

(Cl. Ex. A Enclosure 15).  


                           ISSUES


     There are three issues to be decided in this case:

          (1) whether or not Mr. Hu's complaint was timely filed;

          (2) whether or not Mr. Hu engaged in activities
protected by the ERA; and 

          (3) if Mr. Hu engaged in activities that are protected
by the ERA, were the adverse employment actions taken by PSE & G
motivated by Mr. Hu's protected activities.


                     STATUTE OF LIMITATIONS



[PAGE 6]
     On April 26, 1991, when Mr. Hu's employment at PSE & G was
terminated, the applicable law required that a complaint filed
under the employee protection provision of the Energy
Reorganization Act of 1974, as amended, be filed within thirty
days of the date of the alleged retaliatory personnel action:

     Any employee who believes that he has been discharged or
     otherwise discriminated against by any person in violation
     of subsection (a) of this section may, within thirty days
     after such violation occurs, file (or have any person file
     on his behalf) a complaint with the Secretary of Labor . . .
     alleging such discharge or discrimination.

42 U.S.C. §5851(b)(1).  

     PSE & G argues that Mr. Hu's complaint is barred by the
Statute of Limitations.  Mr. Hu filed two complaints with the
DOL, one on May 24, 1991, and another one on May 14, 1993.  The
crux of PSE & G's argument is that Mr. Hu's May 24, 1991
complaint did not set out a claim of discrimination on the basis
of protected activities under the ERA, and thus the complaint
that resulted in this hearing was the one Mr. Hu filed on May 14,
1993.  If this is true, Mr. Hu's complaint is clearly barred by
the Statute of Limitations because more than two years has
elapsed since Mr. Hu's April 26, 1991 termination.  

     I find that Mr. Hu's complaint is not barred by the Statute
of Limitations because Mr. Hu's May 24, 1991 complaint set forth
a complaint of discrimination on the basis of protected
activities.  As such, it was concededly timely filed with the
DOL.  (Tr. at 201).  

     Although Mr. Hu's complaint was not artfully drafted, the
DOL should have been aware that he was alleging a violation of
the ERA.  On the first line of Mr. Hu's complaint he cited 10
C.F.R. §50.7(b) as the regulation under which he was filing
his claim.  This regulation states, in pertinent part:

     Any employee who believes that he or she has been discharged
     or otherwise discriminated against by any person for
     engaging in the protected activities specified in paragraph
     (a)(1) of this section may seek a remedy for the discharge
     or discrimination through an administrative proceeding in
     the Department of Labor.  

10 C.F.R. §50.7(b).  Paragraph (a) of 10 C.F.R. §50.7
states, in pertinent part:

[PAGE 7]

     The protected activities are established in section 210 of
     the Energy Reorganization Act of 1974, as amended, and in
     general are related to the administration or enforcement of
     a requirement imposed under the Atomic Energy Act or the
     Energy Reorganization Act.

10 C.F.R. §50(a).  In addition to citing 10 C.F.R.
§50.7(b), Mr. Hu alleged in his complaint that "Mr. Zambuto
systematically used the employee performance evaluation as a tool
to discriminate against [him] because of [his] protected
activities . . ..  (Cl. Ex. A Enclosure 1).  

     I find that Mr. Hu's reference to 10 C.F.R. §50.7(b)
and his allegation of discrimination based on protected
activities were sufficient to alert the DOL that Mr. Hu's
complaint alleged a 
violation of the whistleblower provision of the Energy
Reorganization Act.  Because the whistleblower provision of the
ERA is within the DOL's jurisdiction, and Title VII claims are
not, the DOL should have only transferred the portion of Mr. Hu's
complaint that alleged a violation of Title VII, rather than his
entire complaint which included an alleged violation of the ERA. 
Accordingly, I conclude that Mr. Hu has filed a timely complaint
of discrimination under the ERA.  I find no merit in PSE & G's
argument that Mr. Hu abandoned his claim.


                           APPLICABLE LAW


     On October 24, 1992 the Comprehensive National Energy Policy
Act was signed into law making several amendments to the
whistleblower provision of the ERA.  P.L. 102-486, 106 Stat.
2776.  Because the new law only governs complaints filed on or
after its enactment, the law applicable to this case is the law
that was in effect prior to the 1992 amendment.  See
§2902(i) of P.L. 102-486.   

     Section 210 of the Energy Reorganization Act of 1974, 42
U.S.C. §5851, provides:

     (a) Discrimination against employee

          No employer, including a Commission licensee, an
     applicant for a Commission license, or a contractor or a
     subcontractor of a Commission licensee or applicant, may
     discharge any employee or otherwise discriminate against any
     
[PAGE 8]
employee with respect to his compensation, terms, conditions, or
privileges of employment because the employee (or any person
acting pursuant to a request of the employee)--

          (1)  commenced, caused to be commenced, or is about to
          commence or cause to be commenced a proceeding under
          this chapter or the Atomic Energy Act of 1954, as
          amended [42 U.S.C. §2011 et seq.],
          or a proceeding for the administration or enforcement
          of any requirement imposed under this chapter or the
          Atomic Energy Act of 1954, as amended;

          (2)  testified or is about to testify in any such
          proceeding or; 

          (3)  assisted or participated or is about to assist or
          participate in any manner in such a proceeding or in
          any other manner in such a proceeding or in any other
          action to carry out the purposes of this chapter or the
          Atomic Energy Act of 1954, as amended [42 U.S.C.
          §2011 et seq.].

In this case, it is conceded that PSE & G is subject to the Act. 
(Tr. at 19).  Complainant relies on §5851(a)(3).

     The Secretary of Labor set forth general principles relating
to the allocation of burdens and order of presentation of proof
to apply in retaliatory adverse action cases arising under the
ERA and related statutes in Dartey v. Zack Comp. of
Chicago, Case No. 82-ERA-2, Secretary's Decision and Final
Order issued April 25, 1983.  See 29 C.F.R. Part 24.  The
complaining employee must initially present a prima
facie case by showing that (1) he engaged in protected
activity, (2) the employer was aware of such activity, and (3)
the employer took adverse action against him.  Dartey at
7.  The employee must additionally present evidence sufficient to
raise the inference that (4) his protected activity was the
likely reason for the adverse action.  Cohen v. Fred Meyer,
Inc., 686 F.2d 793, 796 (9th Cir. 1982).  Evidence that the
employer was aware that the employee had engaged in the protected
activity is essential to a causal link.  Id.  Furthermore,
temporal proximity between the protected activity and the adverse
action may be sufficient to raise the inference that the
protected activity was the motivation for the adverse action. 
Nichols v. Bechtel Constr., Inc., Case No. 87-ERA-0044,
Secretary's Decision and Final Order issued Oct. 26, 1992, slip
op. at 12.  By establishing a prima facie case, the
employee is entitled to a presumption of discriminatory
treatment, because 
[PAGE 9]
employer's "acts, if otherwise unexplained, are more likely than
not based on the consideration of impermissible factors." 
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
254-255 (1981).  

     A claimant does not have to engage in a formal proceeding in
order to invoke the protection of the Act.  Kansas Gas & Elec.
Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir. 1985). 
Moreover, the fact that an employee may be mistaken as to whether
the employer's actions actually violated the statute is not
dispositive of the issue of whether the employee engaged in
protected activity, since "internal complaints regarding safety
or quality problems," Mackowiak v. Univ. Nuclear Sys.,
Inc., 735 F.2d 1159, 1162 (9th Cir. 1984), as well as
"possible violations," Kansas Gas & Elec. Co., 780 F.2d at
1512, are considered protected activity.  

     If the complainant obtains a presumption of discriminatory
treatment by establishing a prima facie case, then
the employer bears the burden of producing an explanation to
rebut the prima facie case, i.e., the burden of
"producing evidence" that the adverse employment actions were
taken "for a legitimate, nondiscriminatory reason."  St.
Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747, _ U.S. _
(1993) (quoting Burdine, 450 U.S. at 254).  Significantly,
the employer bears only a burden of producing evidence at this
point.  The employer must introduce evidence setting forth
reasons for its actions which would support a finding that
unlawful discrimination was not the cause of the employment
action.  St. Mary's, 113 S.Ct. at 2747.  If the employer
carries this burden of production, the presumption of retaliatory
action raised by the prima facie case is rebutted,
and drops from the case.  St. Mary's, 113 S.Ct. at 2747
(citing Burdine, 450 U.S. at 255).   

     It is important to keep in mind that even though the
presumption of retaliatory action shifts the burden of production 
to the defendant, "the ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff."  St.
Mary's, 113 S.Ct. at 2747.
 

                             DISCUSSION


     Mr. Hu contends that PSE & G took adverse employment actions
against him in retaliation of his engaging in protected 
[PAGE 10]
activities.  Mr. Hu argues that the concerns he raised with his
superiors are protected under the ERA because they relate to the
quality and safety of the simulator.  (Tr. at 60).  Mr. Hu
testified that his protected activity consisted of suggestions to
Mr. Huth and Mr. Zambuto that PSE & G needed to "clean-up" the
existing code and documentation (Cl. Ex. A), needed more complete
documentation, and needed more sophisticated software models. 
(Cl. Ex. 1).  Mr. Hu testified that his act of showing Mr. Huth a
document written by Argonne National Laboratory called "Dynamic
Simulator for Nuclear Power Plant" is also protected under the
ERA because Mr. Hu used it as an example of how he thought PSE &
G should be run.  (Tr. at 65-66, Cl. Ex. A).  Mr. Hu asserts that
his suggestion to his superiors that PSE & G hire at least one
nuclear engineer, computer engineer, mechanical engineer, control
engineer, and hydraulic engineer is also protected activity. 
(Tr. at 163, Cl. Ex. A Enclosure 1).  Mr. Hu contends that as a
result of his engaging in these protected activities, PSE & G
retaliated against him by placing him in a PIP (Tr. at 158),
rejecting his request to attend a computer training seminar (Tr.
at 172-173), denying him a salary increase (Tr. at 200-201), and
finally terminating his employment.  
 
     On July 12, 1991, Mr. Hu notified the NRC about his alleged
protected activities.  Because Mr. Hu's correspondence with the
NRC occurred after he was terminated, it is irrelevant to Mr.
Hu's present claim.  (Tr. at 26-27, Cl. Ex. A Enclosure 20).

     PSE & G asserts that Mr. Hu made general and vague
statements about the computer code, which do not constitute
protected activities, but rather were consistent with a software
engineer's job.  PSE & G further claims that all of the adverse
employment actions taken against Mr. Hu were for legitimate
business reasons, and were not related, in any way, to Mr. Hu's
alleged protected activities.  

     I need not address the issue of whether or not Mr. Hu has
established a prima facie case of discrimination
because I am convinced that Mr. Hu has not sustained his ultimate
burden of proving, by a preponderance of the evidence, that PSE &
G intentionally discriminated against him because he engaged in
protected activities.  St. Mary's, 113 S.Ct. at 2747.  On
the contrary, PSE & G has produced convincing evidence that all
the adverse employment actions that Mr. Hu complains of were for
legitimate business reasons.   

     There is an abundance of credible evidence that Mr. Hu's
supervisors and colleagues were dissatisfied with his work from
the first few months of his employment.  Mr. Nguyen, the lead 
[PAGE 11]
software engineer, who reviewed Mr. Hu's performance for
approximately four months at the Salem Simulator, testified that
Mr. Hu was unable to utilize a basic modeling technique in
simulation.  (Tr. at 475-476).  Mr. Nguyen testified that Mr. Hu
could not absorb the training material necessary to do his work,
and lacked the professional ability to do his job.  (Tr. at
469-474).  Mr. Zambuto testified that he transferred Mr. Hu from
the Salem Simulator to the Hope Creek Simulator because of Mr.
Nguyen's poor evaluation of Mr. Hu, because he saw a level of
frustration on Mr. Hu's part in terms of not getting the jobs
done that he was required to get done (Tr. at 328), and because
Mr. Zambuto believed that the documentation at the Hope Creek
Simulator would be easier for Mr. Hu to understand.  (Tr. at
253-254, 328-329).  Mr. Mecchi, the principal trainer for
operations, agreed with Mr. Zambuto that the slower pace of
activities at the Hope Creek Simulator would afford Mr. Hu an
opportunity to grow and mature in his responsibilities.  (Tr. at
329).  

     I also credit the testimony of Mr. Huth, the lead software
engineer at the Hope Creek Simulator.  Mr. Huth, who was not
involved in the decision to terminate Mr. Hu (Tr. at 425),
testified that in March 1990 he realized that Mr. Hu's
performance was not up to standard and that he was spending too
much time helping Mr. Hu.  (Tr. at 413).  As a result of Mr.
Huth's observation, Mr. Zambuto decided to monitor Mr. Hu in
order to "get a grasp of his time management," and to give Mr. Hu
a chance for self-assessment.  (Tr. at 368).  Weekly and
bi-weekly assessment sheets were provided to Mr. Hu as an
opportunity for him to evaluate his own performance, as well as
to provide him a means for feedback.  (Tr. at 367-368).  From
March 1990, until his termination, Mr. Hu received numerous poor
evaluations.  (R. Ex. 19).  

     Mr. Hu's colleagues were also dissatisfied with his work. 
Mr. Carter, who worked with Mr. Hu on a system upgrade work
package, concluded that Mr. Hu's work was "not even marginally
satisfactory."  (Tr. at 492, R. Ex. 19).  Similarly, Mr. Shaffer,
who also worked with Mr. Hu on a number of work packages
concluded that Mr. Hu's work was far inferior in comparison to
the other software engineers that he has previously worked with. 
(Tr. at 500-506).  

     As a result of all of these poor performance reports, Mr. Hu
was notified that he was assigned to a six-month performance
improvement plan.  Mr. Hu's testimony that the PIP was PSE & G's
way to "legitimize the discrimination process," (Tr. at 167), is 
[PAGE 12]
unsubstantiated.  I find that the PIP was a legitimate business
decision motivated solely by Mr. Hu's sub-standard work
performance, and was implemented to test, evaluate, and hopefully
improve Mr. Hu's performance.  I give great weight to the
evidence that indicates that Mr. Hu had a history of poor
performance reports long before the PIP was implemented, because
several PSE & G employees that testified to rating Mr. Hu's
performance below standard were not the employees that
were aware of Mr. Hu's alleged protected activities, nor were
they the employees involved in the decision to implement the PIP. 
Because of Mr. Hu's poor performance reports, Mr. Mecchi and Mr.
Zambuto met with PSE & G's Human Resources Department to put
together a PIP for Mr. Hu.  (Tr. at 259).  Ms. Probisi, the
employee relations coordinator in the Human Resources Department
of PSE & G explained that the Human Resources Department assists
other departments in formulating PIP's when an employee's
performance becomes unsatisfactory.  (Tr. at 439).  Ms. Probisi
testified that PIP's have been used by PSE & G for over five
years and are a routine measure used to help employees.  (Tr. at
440).  After reviewing Mr. Hu's file, Ms. Probisi verified that a
PIP was appropriate in his situation, and that the specific PIP
that was implemented for Mr. Hu was consistent with the
objectives of a performance plan.  (Tr. at 442-443).    

     Mr. Mecchi testified that the first time Mr. Hu raised an
issue regarding his alleged protected activity was at the panel
meeting held on January 11, 1991, four months after Mr. Hu
began the PIP.  (Tr. at 262-263).  Similarly, Mr. Zambuto
testified that the first time Mr. Hu expressed concerns about his
alleged protected activity in "a little more formal way" was at
this panel meeting.  (Tr. at 318).  Mr. Huth, who also attended
the January 11, 1991 panel meeting, testified that Mr. Hu
deflected the comments that were made about his poor work
performance by questioning other aspects of the program.  (Tr. at
424).  In sum, Mr. Hu has not proven the causation element of his
claim that the PIP was motivated in retaliation of his engaging
in protected activities.  

     I also find that it was a legitimate business decision not
to send Mr. Hu to Florida for advanced computer training.  I
credit Mr. Zambuto's testimony that the courses that were offered
were rudimentary training courses in FORTRAN, which were too
elementary for Mr. Hu, who had ten years of experience working in
FORTRAN.  (Tr. at 336).  I also credit Mr. Zambuto's testimony
that Mr. Hu was not considered for any of the more advanced
courses that were offered because of where he was in his
development.  Furthermore, PSE & G's policy of only sending a few

[PAGE 13]
employees to off-site training due to budgetary concerns is
legitimate.  I am especially persuaded by Mr. Zambuto's testimony
regarding the training Mr. Hu received.  Mr. Zambuto testified
that when employees are hired they fill out a management
personnel inventory, which is a tool by which an employee has an
opportunity to express his desires, goals, and perceived career
paths.  (Tr. at 337-338).  On Mr. Hu's inventory, he specified a
desire to attend five training courses.  (R. Ex. 3).  Mr. Hu
attended all of the courses on his list with the exception of one
training course, which was no longer applicable to Mr. Hu's job
because he transferred to the Hope Creek Simulator.  (R. Ex. 3,
Tr. at 338-341, 137-141).  Mr. Hu corroborated Mr. Zambuto's
testimony by admitting that with the exception of the one course
that he was complaining about, he attended all the other programs
he requested, as well as numerous others.  (Tr. at 141-145). 

     I find that Mr. Hu has not proven that PSE & G's denying him
a salary increase was motivated in retaliation of his engaging in
protected activities.  Mr. Hu's only evidence in support of his
assertion that he was denied a salary increase in retaliation of
his protected activities is his own testimony of temporal
proximity between the panel meeting and receiving notice that he
would not get a salary increase.  Temporal proximity may be used
to prove causation, however under the circumstances in this case
that argument is not persuasive.  As discussed above, the purpose
of the panel meeting was to discuss the fact that Mr. Hu's work
performance was still below standard, even after being in a PIP
for four months.  Additionally, there is strong testimony by Mr.
Mecchi and Mr. Huth that Mr. Hu raised his alleged protected
activities at the panel meeting instead of addressing the
comments that were made about his poor work performance. 

     Finally, the fact that none of Mr. Hu's testimony concerning
the alleged discrimination was corroborated, and the fact that
Mr. Hu adduced several grounds of discrimination do not add
persuasion to his case.  In order to believe Mr. Hu, I would have
to reject the testimony of all the PSE & G employees.  Although
Mr. Hu possesses excellent academic credentials, working as a
simulator software engineer at PSE & G simply did not work out.

     In conclusion, I find that PSE & G has articulated
legitimate, nondiscriminatory reasons for taking adverse
employment actions against Mr. Hu.  Accordingly, assuming
arguendo that Mr. Hu has made a prima facie
case, PSE & G has rebutted the presumption of retaliatory action. 
I find no evidence of pretext or dual motive.  Furthermore, Mr.
Hu has not sustained his ultimate burden of proving that his
allegedly 
[PAGE 14]
protected activity motivated, in whole or in part, PSE & G's
decision to take any of the adverse employment actions he
experienced.  The weight of the evidence in the record indicates
that Mr. Hu was terminated from PSE & G for legitimate business
reasons.  


                         RECOMMENDED ORDER



     Mr. Hu's claim of discrimination under §210 of the ERA
is dismissed.





                    __________________________
                    NICODEMO DE GREGORIO
                    Administrative Law Judge



NDG/JB/sjn

NOTICE:  This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave., N.W., Washington, D.C.  20210. 
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary in the preparation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 29 C.F.R. Parts 24 and 1978.  See 55
Fed. Reg. 13250 (1990).


                        SERVICE SHEET


Case Name:  Teh K. Hu v. Public Service Electric & Gas Company

Case No.:  93-ERA-38


[PAGE 15]
Title of Document:  Recommended Decision and Order

I, Sheila Joyce Neal certify that on December 8, 1993, a copy of
the order was mailed to the last known address of each of the
following parties and their representatives.

                               ____________________
                               Sheila Joyce Neal
                               Legal Technician
Administrator
Employment Standards
Wage and Hour Division
U.S. Department of Labor           Director
Room S-3502                        Office of Enforcement
200 Constitution Ave., N.W.        U.S. Nuclear Regulatory 
Washington, D.C. 20210              Commission
                                   Washington, D.C. 20555
Environmental Protection
 Agency
401 M Street, S.W.                 Deputy Assistant General
Washington, D.C. 20002              Counsel for Enforcement
                                   U.S. Nuclear Regulatory
Deputy Associate Solicitor          Commission
Division of Fair Labor             Washington, D.C. 20555
 Standards
Office of the Solicitor
U.S. Department of Labor
200 Constitution Ave., N.W.
Room N-2716
Washington, D.C. 20460

Robert M. Rader, Esq.
Winston & Strawn
1400 L Street, N.W.
Washington, D.C. 20005

Teh K. Hu
211 Apache Court
Newark, Delaware 19702

Henry L. San Giacomo, Esq.
Public Service Electric & Gas Co.
80 Park Plaza T5E
Newark, NJ 07101





                                 December 8, 1993




MEMORANDUM TO:  Robert B. Reich
                Secretary of Labor

FROM         :  Nicodemo De Gregorio
                Administrative Law Judge

SUBJECT      :  Teh K. Hu v. Public Service Electric
                 & Gas Company
                Case No.: 93-ERA-38


     On December 18, 1993 a Recommended Decision and Order in the
Teh K. Hu v. Public Service Electric & Gas Company, Case No. 93-
ERA-38, was transmitted to your office.  We are hereby forwarding
three letters from Mr. Hu that were received after the issue of
the Decision and Order.

     Please associate this with the case record.




                              Sincerely yours,




                              Sheila Joyce Neal
                              Legal Technician
                               for Judge De Gregorio